Friday, June 2, 2017
HR 985, the Fairness in Class Action Litigation and Furthering Asbestos Claim Transparency Act of 2017, has now passed the House and is pending in the Senate's Committee on the Judiciary. How might that bill affect plaintiffs involved in mass torts like mesh, Essure, Yaz, Mirena, NuvaRing, Ortho Evra, Power Morcellator, or the many hip implant suits?
Simply reading the bill, I'm afraid, won't help too much. It's shrouded in legalese. As such, I've marked up the bill to explain in non-legalese which provisions help and hurt mass-tort victims and consumers.
Many of the class action provisions in HR 985 don't affect mass-tort plaintiffs at all since those lawsuits rarely proceed as class actions (albeit, there are some notable exceptions, like the NFL concussion cases and the injuries incurred during the clean-up of the BP oil spill; both litigations were certified as settlement class actions).
There is, however, a possibility for judges to use class actions as a means to step in and ensure that plaintiffs are being adequately represented (and that resulting settlements are fair, reasonable, and adequate). How? Through the issue class action. Unfortunately, as HR 985 is currently written, it would completely eliminate that possibility.
I've studied MDLs for many years now and have written articles that are critical of both repeat player plaintiffs' attorneys and the manner in which judges sometimes handle these cases. Over the past four years, I've collected data on and analyzed 73 multidistrict proceedings. Although I'm still in the process of writing a book about my findings, one thing has become glaringly clear to me: the systematic lack of checks and balances in our courts seem to profit everyone but the plaintiffs.
Analyzing the deals repeat players make, the “common-benefit” attorneys’ fees that the lead plaintiffs’ attorneys receive to run the proceedings, and the judicial rulings in mass-tort cases consolidated over 22 years and settled over 12 years reveals a disturbing pattern: repeat plaintiff and defense attorneys persistently profit from the current system.
Corporate defendants end sprawling lawsuits and lead plaintiffs’ lawyers broker deals that reward them handsomely and sometimes pay litigants very little. For example, in litigation over the acid-reflux medicine, Propulsid, only 37 of 6,012 plaintiffs (0.6 percent) recovered anything through the strict settlement program. Their collective recoveries totaled no more than $6.5 million. Yet, the lead plaintiffs’ attorneys received over $27 million in common-benefit attorneys’ fees, vividly illustrating the worry that a corporate defendant might trade higher fees for less relief to plaintiffs.
So, is reform needed? Absolutely. Is HR 985 the right ticket? No, not as it's currently written.
As such, I've marked up the bill in a way that begins to instill the necessary reforms and eliminates (or changes) provisions that set up further (and unnecessary) roadblocks for plaintiffs. It also explains what the proposed provisions do in plain English: Download HR985 Burch Mark-up
If you want some version of HR 985 to pass, please consider forwarding this revised version to your Senator and do not support the bill as it reads now.
For those who care more about the legalese, I was contacted by a House subcommittee to provide nonpartisan, academic commentary on the bill, which I did. That write up is included here (note, however, that this is a commentary on the original House bill and some changes have been made to the current bill that address a few of the concerns I raised): Download Burch Final Comments on Fairness in Class Action Litigation Act
There's no need to take just my word for it, though. Every other academic that I know of opposes this bill, as has the Federal Rules Committee. This committee, formally known as the Committee on Rules of Practice and Procedure, just happens to include Neil Gorsuch, now Justice Gorsuch (of the U.S. Supreme Court), whose views are reflected in the letter below as well.
And here are links to other academic commentary -
Professor John C. Coffee, Jr. (Columbia Law School): Download Coffee - How Not to Write a Class Action “Reform” Bill _ CLS Blue Sky Blog
Professor Howard Erichson (Fordham Law School): Download Erichson-hr985-letter
Professor Myriam Gilles (Cardozo Law School): Download Gilles Letter to James Park on HR 985
Friday, May 12, 2017
An Iowa class action (subject to CAFA's local class exception) has been approved by the Iowa Supreme Court. Here is the report from Iowa radio. You can find the opinion here: Freeman v. Grain Processing Corporation.
The court considers arguments that individual defenses ought to defeat class certification, as well as arguments based in the Supreme Court's opinions in Wal-Mart and Tyson Foods and rejects them. It explained:
GPC argues that class certification will deny it the fair opportunity to contest whether individual homeowners have suffered injury or damage. We disagree. The plaintiffs have proposed a formula for damages. GPC can contest the appropriateness of that formula before the jury. If a special jury verdict is entered approving this formula and that verdict is supported by substantial evidence, then potentially this formula can be used in subsequent claims administration by the court while preserving GPC’s due process and jury trial rights. If no damage formula is approved, then there would have to be subsequent individual trials on damages. Either way, GPC’s rights would be protected. (33)
One additional aspect of the case is worth noting. The Court specifically differentiates this nuisance class action, which alleges injury in the form of property damage, from a personal injury action and distinguishes some federal precedent on that basis. As I show in a forthcoming article in NYU Law Review called Mass Tort Class Actions: Past, Present and Future, that is a common pattern for mass tort classes that have been certified for litigation. For example, the first asbestos class actions certified were property damages classes. In that article, I review all the mass tort class actions considered by the federal court from the promulgation of the class action rule through Amchem, and explain how they relate to developments in tort law during the same period. I will be posting this article to SSRN in July.
Wednesday, April 26, 2017
Yesterday the Supreme Court held oral arguments in a personal jurisdiction case involving purchasers of the drug Plavix who bought the drug in Ohio but wanted to join a suit in California where the company does almost 1 billion dollars worth of business. There is a marvelous amicus in the case by Alan Morrison who argues for a new test for personal jurisdiction. Its a "must read" for those of us who think about civil procedure or teach mass torts.
Tuesday, April 4, 2017
With everything else that's dominated the news, it's easy to place the "Fairness in Class Action Litigation Act" on the back burner. But to forget that it's still an active bill (having now passed the House and pending before the Senate) would be a mistake.
Professor Myriam Gilles (Cardozo) and I recently published an op-ed with Bloomberg Law, which appeared in yesterday's Product Safety & Liability Reporter and will be in next week's Class Action Litigation Report titled Congress's Judicial Mistrust. You can read it here: Download Bloomberg Law - Congress's Judicial Mistrust.
We explained our legal positions more fully in our respective letters to the House Judiciary's subcommittee. Download Burch Final Comments on Fairness in Class Action Litigation Act, Download Gilles Letter to James Park on HR 985.
Friday, March 17, 2017
Adam Zimmerman has posted his new article "Bellwether Settlements" to SSRN. The abstract is below:
This Article examines the use of bellwether mediation in mass litigation.
Bellwether mediations are different from “bellwether trials,” a practice
where parties choose a representative sample of cases for trial to determine
how to resolve a much larger number of similar cases. In bellwether
mediations, the parties instead rely on a representative sample of settlement
outcomes overseen by judges and court-appointed mediators.
The hope behind bellwether mediation is that different settlement
outcomes, not trials, will offer the parties crucial building blocks to forge a
comprehensive global resolution. In so doing, the process attempts to (1)
yield important information about claims, remedies, and strategies that
parties often would not share in preparation for a high-stakes trial; (2) avoid
outlier or clustering verdicts that threaten a global resolution for all the
claims; and (3) build trust among counsel in ways that do not usually occur
until much later in the litigation process.
The embrace of such “bellwether settlements” raises new questions about
the roles of the judge and jury in mass litigation. What function do courts
serve when large cases push judges outside their traditional roles as
adjudicators of adverse claims, supervisors of controlled fact-finding, and
interpreters of law? This Article argues that, as in other areas of aggregate
litigation, courts can play a vital “information-forcing” role in bellwether
settlement practice. Even in a system dominated by settlement, judges can
help parties set ground rules, open lines of communication, and, in the
process, make more reasoned trade-offs. In so doing, courts protect the
procedural, substantive, and rule-of-law values that aggregate settlements
Friday, March 3, 2017
Bruce Kaufman, the senior legal editor at Bloomberg BNA, has written a very informative series of articles examining the prospects that the House, Senate, and President will enact wide-ranging tort and civil justice "reform" legislation. This legislation includes:
- HR 985, the "Fairness in Class Action Litigation Act"
- HR 725, the "Innocent Party Protection Act"
- HR 469, the "Sunshine for Regulatory Decrees and Settlements Act"
- HR 720, the "Stop Settlement Slush Funds Act" or "Lawsuit Abuse Reduction Act"
- and HR 906, the "Furthering Asbestos Claims Transparency Act"
All three articles are worth a careful read. Links and downloads included below, courtesy of Bruce and Bloomberg BNA.
- Part 1: Trump to Weigh Litigation Changes, Download BNA - Trump to Weigh Litigation Changes Long Coveted by Business
- Part 2: Push to Enact Civil Justice Bills Follows Industry Playbook, Download BNA - Push to Enact Civil Justice Bills Follows Industry Playbook
- Part 3: Trump Seen as Supportive of Business-Backed Litigation Bills, Download BNA - Trump Seen as Supportive of Business-Backed Litigation Bills
For those of you who missed the academic roundup on HR 985, you can find it here.
Floor debate on at least four of the bills (including the now merged HR 985 and HR 906, class actions and asbestos) is scheduled to begin as soon as the week of March 6. A seventh bill on medical malpractice reform, HR 1215, may be voted on the week after March 6.
Saturday, February 25, 2017
With House Bill 985 (the "Fairness" in Class Action Litigation Act of 2017), the controversy over current class action practice has escalated. I've been an outspoken critic of the cozy relationships that plaintiffs' lawyers and defense lawyers have developed not only in class actions, but in multidistrict litigation, too. Yet, as I (along with a number of other academics) have discussed, HR 985 doesn't fix what's ailing the system. Instead, it seeks to eliminate most class actions, tramples bipartisan consensus in the appellate courts and federal rules committee, and ineptly tells judges how to do their jobs.
This past January, I attended a conference at Tel Aviv University called Fifty Years of Class Actions--A Global Perspective. As part of that conference, I wrote a paper titled Publicly Funded Objectors, which calls for data collection and suggests that if the U.S. is truly serious about fixing what ails class actions, then it needs to publicly fund those who police them best--nonprofit organizations. I posted the paper on SSRN today.
Now that we have 50 years of class action practice under our belt, we know that practice suggests the need for tune-ups: sometimes judges still approve settlements rife with red flags, and professional objectors may be more concerned with shaking down class counsel than with improving class members’ outcomes. The lack of data on the number of opt-outs, objectors, and claims rates fuels debates on both sides, for little is known about how well or poorly class members actually fare. This reveals a ubiquitous problem—information barriers confront judges, objectors, and even reformers.
Rule 23’s answer is to empower objectors. At best, objectors are a partial fix. They step in as the adversarial process breaks down in an attempt to resurrect the information-generating function that culture creates. And, as the proposed changes to Rule 23’s handling of objectors reflect, turmoil exists over how to encourage noble objectors that benefit class members while staving off those that namely seek rents from class counsel.
Our class-action scheme is not the only one that relies on private actors to perform public functions: citizens privately fund political campaigns, and private lobbyists provide research and information to lawmakers about public bills and policies. Across disciplines, the best responses to those challenges have often been to level up, not down. As such, this Essay proposes a leveling up approach to address judges’ information deficit such that they can better perform their monitoring role. By relying on public funds to subsidize data collection efforts and nonprofit objectors’ information-gathering function, we can disrupt private class counsel’s disproportionate influence.
Put simply, we keep the baby and just throw out the bathwater.
Tuesday, February 21, 2017
Academics have been busy this week providing commentary on HR 985, the "Fairness in Class Action Litigation Act of 2017." Here's a round-up of the commentary thus far (and please do let me know if I've missed someone).
John Coffee (Columbia): Download Coffee - How Not to Write a Class Action “Reform” Bill _ CLS Blue Sky Blog
Howard Erichson (Fordham): Download Erichson-hr985-letter
Myriam Gilles (Cardozo): Download Gilles Letter to James Park on HR 985
And mine, Elizabeth Chamblee Burch (Georgia): Download Burch Final Comments on Fairness in Class Action Litigation Act
For those of you who like up to the minute commentary, several academics and reporters keep very active twitter accounts that track the bill: @adam_zimmerman, @elizabethcburch, @HowardErichson, @PerryECooper
Saturday, February 18, 2017
Class actions and MDL have real problems that need fixing. I have written about these problems at length, most recently in Aggregation as Disempowerment. But the new bill that just passed the House Judiciary Committee does not fix any of the real problems. Instead, it is a crass attempt to undermine any effort by plaintiffs to seek justice in mass disputes.
The bill, H.R. 985, the "Fairness in Class Action Litigation Act of 2017," seeks to reduce defendants' exposure to liability for mass harms by tightening the standard for class certification, imposing an ascertainability requirement, delaying the payment of class counsel fees, limiting the use of issue class actions, expanding diversity jurisdiction, mandating Lone Pine orders in MDL, banning trials in MDL, and capping MDL personal injury attorneys' fees at 20%, among other things. As Beth Burch noted, the bill does not make things fairer for those who have been wronged.
I would like to see thoughtful reforms to help courts distinguish meritorious from non-meritorious claims. I would like to see thoughtful reforms to protect claimants from unfair settlements in both class actions and MDL. And I would like to see thoughtful reforms to ensure that fees reflect what lawyers actually accomplish, not inflated settlement valuations. The abuses in class actions and non-class mass litigation happen mostly in settlement, not litigation and adjudication. But that is not what this bill would address. Instead, its provisions are aimed mostly at protecting defendants from the kinds of class actions and mass litigation that actually empower consumers, employees, citizens, and others to fight corporate and government wrongdoing.
Even where the bill aims at real problems (such as its provision to expand diversity jurisdiction to reach plaintiffs suing diverse defendants but who join with a non-diverse plaintiff), it goes too far, failing to match its solution to the problem of magnet jurisdiction in nationwide mass disputes.
In my letter to Congressional leaders, I attempt to explain which of the provisions of H.R. 985 are especially problematic, and why. If you're interested, you can find the letter here:
Monday, February 13, 2017
The U.S. House of Representatives is considering a bill that would substantially curtail the usefulness of class actions and multidistrict litigation, but would not make things "fairer" for class members.
Alison Frankel has a great write-up on the proposal that includes my preliminary comments along with Professor Myriam Gilles's comments. I'm heartened that representatives are reaching out to academics, because I have a number of concerns with the bill's proposals. If you are likewise concerned, then you should weigh-in, too. The House is marking up the bill on Wednesday.
My comments are available here: Download Final Comments on Fairness in Class Action Litigation Act
Tuesday, December 27, 2016
Tuesday, December 20, 2016
I received the following announcement from David Marcus:
We are excited to announce the third annual Civil Procedure Workshop, to be co-hosted by the University of Arizona Rogers College of Law, the University of Washington School of Law, and Seattle University School of Law. The CPW will be held at the University of Arizona in Tucson on November 3-4, 2017.
The CPW gives both emerging and established civil procedure scholars an opportunity to gather with colleagues and present their work to an expert audience. Scholars will present their papers in small panel sessions. A senior scholar will moderate each panel and lead the commentary. In addition to paper presentations, we intend to engage members of the judiciary and federal civil rulemaking bodies in discussions about current developments in procedure. Our ongoing goal is for the CPW to strengthen the study of procedure as an academic discipline, and to deepen ties among the academy, rulemakers, and the judiciary.
Confirmed participants for 2017 include the Hon. David Campbell, Allen Erbsen, Margaret Lemos, Troy McKenzie, Mark Moller, the Hon. Lee Rosenthal, Elizabeth Schneider, Norman Spaulding, and Beth Thornburg. We welcome all civil procedure scholars to attend. Those wishing to present a paper for discussion should submit a two-page abstract by March 1, 2017. While we welcome papers from both emerging and senior scholars, preference may be given to those who have been teaching for less than ten years. We will select papers to be presented by April 15, 2017. Please send all submissions or related questions to Dave Marcus.
The CPW will provide meals for registrants. Participants must cover travel and lodging costs. We will provide information about reasonably priced hotels as the date approaches. Feel free to contact us with questions.
Dave Marcus (Arizona), dmarcus at email.arizona.edu
Liz Porter (UW), egporter at uw.edu
Brooke Coleman (Seattle U), colemanb at seattleu.edu
Friday, November 18, 2016
Hi Everyone! I am happy to announce that my home institution has organized the inaugural Miami Class Action and Complex Litigation Forum, scheduled for December 2, 2016 - only 2 weeks away! This is a great event for to those interested in mass tort and similarly complex litigation.
The program contains federal judges who handle the largest MDL cases, members of the MDL Panel, the President of the National Association of Attorneys Generals and 14 of the top class action practitioners. The organizers are trying to keep the attendance to a select number this year so everyone can ask questions and enjoy an intimate cocktail reception, but they have a few slots still remaining. Registration information, as well as other information, can be found here: http://www.law.miami.edu/academics/continuing-legal-education-cle/class-action-forum.
The Panels include the following judges and attorney general:
Judge David Proctor (N.D. Ala. and MDL Panel)
Judge Robin Rosenbaum (11th Circuit Court of Appeals)
Judge Eldon Fallon (E.D. La.)
Judge David Herndon (S.D. Ill.)
Judge Susan Illston (N.D. Cal.)
Judge Brian Cogan (E.D. N.Y.)
Judge Kathryn Vratil (D. Kan.)
Judge Michael Hanzman (11th Judicial Cir. Miami-Dade County)
Attorney General Marty J. Jackley (President of National Association of Attorney Generals)
The Panels also include the following practitioners and academics with the judges:
Moderator: Adam Moskowitz, Kozyak Tropin Throckmorton, LLP, Adjunct Professor of Class Action Litigation, University of Miami School of Law
Joseph Whatley, Whatley Kallas, LLP
Frank Burt, Carlton Fields Jorden Burt, P.A.
Jack Scarola, Searcy Denney Scarola Barnhart & Shipley
Marty Steinberg, Hogan Lovells
Jonathan Marks, Marks Mediation
Moderator: Peter Prieto, Podhurst Orseck, P.A.
Steve Berman, Hagens Berman Sobol Shapiro LLP
Robert Hilliard, Hilliard Munoz Gonzalez LLP
Mark Lonergan, Severson & Werson
Brian Fitzpatrick, Professor of Law, Vanderbilt Law School
Moderator: Sergio Campos, Professor of Law, University of Miami School of Law
Elizabeth J. Cabraser, Lieff Cabraser Heimann & Bernstein, LLP
Dan Girard, Girard Gibbs LLP
Edith Kallas, Whatley Kallas LLP
Moderator: Lance A. Harke, Harke Clasby & Bushman LLP
Jeanne Finegan, President, Heffler Claims Group/Heffler Media, LLC
Steven Marks, Podhurst Orseck, P.A
Harley S. Tropin, Kozyak Tropin Throckmorton, LLP
Charles Zimmerman, Zimmerman Reed, LLP
Monday, September 26, 2016
Somehow I missed Alison Frankel's report on a consumer class action in Texas spurred by solicitations to join a mass tort. Here is the report:
It's like she wrote my complex litigation exam for me. ADL
Sunday, September 18, 2016
Professors Andrew Bradt (UC Berkeley Law) and D. Theodore Rave (U. Houston Law) have posted to SSRN their article, The Information-Forcing Role of the Judge in Multidistrict Litigation, Cal. L. Rev. (forthcoming). Here is the abstract:
In this article, we address one of the most controversial and current questions in federal civil procedure: What is the proper role of the judge in the settlement of mass-tort multidistrict litigation, or MDL? Due to the Supreme Court’s hostility to class actions, MDL proceedings have begun to dominate the federal civil docket. To wit, nearly half of the federal civil caseload is MDL. Although MDL is structurally different from a class action, the procedure replicates — and in many ways complicates — the principal-agent problems that plagued the class action. Like a class action, nearly all MDL cases are resolved by a comprehensive global settlement agreement, but, unlike a class action, in MDL the judge has no authority to reject a settlement agreement as unfair to the potentially thousands of parties ensnared in the litigation. Here, we argue that, given this limitation, the judge should act as an “information-forcing intermediary,” who reserves the right to offer a non-binding opinion about the fairness of the settlement to send an easy-to-understand signal directly to the parties about their lawyers’ performance. Such a signal will mitigate many of the agency problems inherent to MDL and allow parties to exercise informed consent when choosing whether to accept a settlement. More generally, this article is a call for judges to embrace an information-forcing role at the head of consolidated MDL proceedings.
Friday, September 2, 2016
Adam Zimmerman of Loyola and Michael Sant'Ambrogio of Michigan State have just posted on SSRN a draft of their new article, Inside the Agency Class Action, forthcoming in the Yale Law Journal. Here is the abstract:
Federal agencies in the United States hear almost twice as many cases each year as all the federal courts. But agencies routinely avoid using tools that courts rely on to efficiently resolve large groups of claims: class actions and other complex litigation procedures. As a result, across the administrative state, the number of claims languishing on agency dockets has produced crippling backlogs, arbitrary outcomes and new barriers to justice.
A handful of federal administrative programs, however, have quietly bucked this trend. The Equal Employment Opportunity Commission has created an administrative class action procedure, modeled after Rule 23 of the Federal Rules of Civil Procedure, to resolve “pattern and practice” claims of discrimination by federal employees before administrative judges. Similarly, the National Vaccine Injury Compensation Program has used “Omnibus Proceedings” resembling federal multidistrict litigation to pool common claims regarding vaccine injuries. And facing a backlog of hundreds of thousands of claims, the Office of Medicare Hearings and Appeals recently instituted a new “Statistical Sampling Initiative,” which will resolve hundreds of common medical claims at a time by statistically extrapolating the results of a few hearing outcomes.
This Article is the first to map agencies’ nascent efforts to use class actions and other complex procedures in their own hearings. Relying on unusual access to many agencies — including agency policymakers, staff and adjudicators — we take a unique look “inside” administrative tribunals that use mass adjudication in areas as diverse as employment discrimination, mass torts, and health care. In so doing, we unearth broader lessons about what aggregation procedures mean for policymaking, enforcement and adjudication. Even as some fear that collective procedures may stretch the limits of adjudication, our study supports a very different conclusion: group procedures can form an integral part of public regulation and the adjudicatory process itself.
The article is a culmination a project both Adam and Michael initiated with the publication of their article The Agency Class Action in 2012. Since then Adam and Michael were asked by the Administrative Conference of the United States to study the actual use of class action-type procedures in agency proceedings, which culminated in a report released this summer (for background, check out my JOTWELL submission here). The new draft article analyzes the results of that study. The article should be of great interest for mass tort practitioners, particularly those who litigate (or who contemplate litigating) in agencies in addition to courts. I cannot recommend it highly enough!
Tuesday, August 16, 2016
As our readers surely know, despite its bulky name, multidistrict litigation (“MDL”) is in the news constantly: litigation over Volkswagen's defeat device, GM’s ignition defect, Toyota’s sudden acceleration, asbestos, and medical drugs and devices (pelvic mesh, Yasmin/Yaz, NuvaRing, Vioxx) are just a few of the higher profile MDLs.
MDL now comprises over 36% of the entire federal civil caseload (that number leaps to 45.6% if you exclude social security and prisoner cases), yet courts and Congress have made it more difficult for these cases to proceed as certified class actions. This litigation doesn’t go away without class certification as many tort reformers believe, it simply persists with far less judicial oversight.
Few rules and little appellate oversight on the one hand, plus multi-million dollar “common-benefit fees” for the lead lawyers who shepherd these cases toward settlement on the other may tempt a cadre of repeat attorneys to fill in the gaps in ways that further their own self interest. (Because there are so many cases involved, judges appoint "lead lawyers" to litigate and negotiate on behalf of the entire group of plaintiffs; if their individual attorney isn’t a lead lawyer, then that attorney has little say in how the litigation is conducted.)
To shed light on some of these issues, my co-author, Margaret Williams, and I have posted a revised version of our paper, Repeat Players in Multidistrict Litigation: The Social Network (forthcoming, Cornell Law Review) on SSRN.
We collected data on who the lead attorneys are (plaintiff and defense side) in all product-liability and sales practice cases that were pending on the MDL docket as of May 2013 (those cases covered a 22-year span), built an adjacency matrix, and employed a two-mode (actors and events) projection of a bipartite network (also known as an affiliation network) to graph the ties between lawyers judicially appointed to leadership positions (the actors) in multidistrict proceedings (the events). (For the non-statistically inclined, this social network analysis is somewhat akin to the kind that Facebook has popularized.)
The point was to reveal what the naked eye cannot see: how those attorneys and MDLs connect to one another. (Detailed, searchable PDFs of the social network with the players and litigations are available here). We also collected data on the publicly available nonclass settlements that repeat players brokered, reviewed news and media accounts of those litigations, and analyzed the common-benefit fees awarded to the lead plaintiffs' lawyers.
Here’s a summary of our key findings:
- Repeat players are prevalent on both the plaintiff and the defense side.
- No matter what measure of centrality we used, a key group of 5 attorneys maintained their elite position within the network.These 5 attorneys may act as gatekeepers or toll takers, for example. This matters considerably, for lead lawyers control the proceeding and negotiate settlements. They can bargain for what may matter to them most: defendants want to end lawsuits, and plaintiffs’ lawyers want to recover for their clients and receive high fee awards along the way.
- By identifying settlement provisions that one might argue principally benefit the repeat players, we examined the publicly available nonclass settlements these elite lawyers designed. Over a 22-year span, we were unable to find any deal that didn’t feature at least one closure provision for defendants, and likewise found that nearly all settlements contained some provision that increased lead plaintiffs’ lawyers’ common-benefit fees. Bargaining for attorneys’ fees with one’s opponent is a stark departure from traditional contingent-fee principles, which are designed to tie lawyers’ fees to their clients’ outcome.
- Based on the evidence available to us, we found reason to be concerned that when repeat players influence the practices and norms that govern multidistrict proceedings—when they “play for rules,” so to speak—the rules they develop may principally benefit them at the plaintiffs’ expense.
A highly concentrated plaintiff and defense bar is nothing new, nor is the disquiet about where that concentration may lead. As scholars have long recognized, repeat play tends to regress our adversarial system from its confrontational roots toward a state of cooperation.
In the criminal context, prosecutors and public defenders routinely work together through plea bargaining, leading them toward mutual accommodation; incumbents form a primary community of interest, whereas clients present secondary challenges and contingencies. As such, adversary features are often overshadowed by regulars’ quid pro quo needs. As Professor Jerome Skolnick has explained, those working group relationships become a social control problem only once they reach a “tipping point where cooperation may shade off into collusion, thereby subverting the ethical basis of the system.” (Social Control in the Adversary System, 11 J. Conflict Resol. 52, 53 (1969)).
As I’ve argued in a separate article, Monopolies in Multidistrict Litigation, we've reached that tipping point in MDL, and these circumstances warrant regulation. Even though MDL judges are the ones who entrench and enable repeat players, they also are integral to the solution.
By tinkering with lead-lawyer selection and compensation methods and instilling automatic remands to a plaintiff’s original court after leaders negotiate master settlements, judges can capitalize on competitive forces already in play. Put simply, the antidote is to reinvigorate competition among plaintiffs’ attorneys and I’ve set forth several specific proposals for doing so in Part III of Monopolies in Multidistrict Litigation.
For interested judges, that article's appendix also contains a Pocket Guide for Leadership Appointment and Compensation, a Sample Leadership Application form, and sample orders for suggesting remand and replacing leaders who ignore adequate representation concerns.
August 16, 2016 in Aggregate Litigation Procedures, Current Affairs, Ethics, Lawyers, Mass Tort Scholarship, Pharmaceuticals - Misc., Prempro, Procedure, Products Liability, Settlement, Vioxx | Permalink | Comments (0)
Monday, July 25, 2016
Sergio Campos has a great new review on JOTWELL of an important report from Adam Zimmerman and Michael Sant'Ambrogio. The report concerns the use of aggregation techniques in administrative agencies and is both conceptually and practically interesting. Both the review and the report are worth reading!
Saturday, July 2, 2016
Hillel Bavli on the Logic of Comparable-Case Guidance in the Determination of Awards for Pain and Suffering and Punitive Damages
Hillel Bavli (Ph.D. Candidate in Statistics in Law & Governance, Harvard; Counsel, Boies, Schiller & Flexner LLP) has posted to SSRN his article, The Logic of Comparable-Case Guidance in the Determination of Awards for Pain and Suffering and Punitive Damages, U. Cin. L. Rev. (forthcoming 2016). Here is the abstract:
Little guidance is provided to fact-finders in arriving at awards for pain and suffering and punitive damages. Such awards are therefore highly variable. This article explains why methods involving comparable-case guidance — information regarding awards in comparable cases as guidance for determining damage awards — are generally effective in reducing unpredictability and improving the reliability of awards for pain and suffering and punitive damages. The article addresses major objections to such methods, and provides relevant legal context and direction for implementation.
Professor Alexander Lemann (Research Fellow & Adjunct Professor, Georgetown Law) has posted to SSRN his article, Coercive Insurance and the Soul of Tort Law, 105 Geo. L.J. (forthcoming 2016). Here is the abstract:
Scholars have long accepted the idea that there are alternatives to the tort system, particularly insurance, that are better at compensating victims than tort law. Tort law remains necessary, it has been assumed, because insurance lacks the ability to deter conduct that causes harm, and indeed it sometimes creates a moral hazard that increases incentives to engage in risky conduct. Scholars of insurance law, however, have observed that insurance has at its disposal a variety of tools that can help deter risky conduct. Recent technological developments lend dramatic support to this account. New telematics devices being used in automobiles can track acceleration, braking, and even whether a car is exceeding the speed limit on a particular road, allowing insurance companies to identify and penalize individual acts of negligent driving in real time. Insurance can now, in many cases, deter risky conduct more effectively than tort law. And yet tort law incorporates values that insurance cannot.
While much attention has been paid to the implications of these developments for insurance law, the implications for tort theory have been largely ignored. This Article fills that gap. Where insurance coverage is mandatory and premiums are adjusted based on individual acts by individual customers, “coercive insurance” can be understood as a liability rule just like tort law. Comparing the mechanisms by which these systems deter risky conduct, I argue that coercive insurance’s abandonment of certain features central to tort law makes it inherently more efficient in dealing with certain risks. Coercive insurance thus helps resolve the ongoing debate between efficiency and rights-based theories of tort law, undermining the claim that tort law is best understood as a system for achieving efficient deterrence and lending support to the idea that concepts like corrective justice and civil recourse theory are necessary to explain tort law’s purpose and structure.